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Posted by  JanetK_CA on 11/27/19 3:22pm
I know I'm beating a dead horse on this issue, but this thread once again illustrates how much state law can vary from one place to another and how critical it is for us to have a clear understanding of our responsibilities AND of the limits of what we can and can't (and should and shouldn't) do. [And how we need to be careful about what advice we listen to here.]
When facing a situation involving a POA, we need to distinguish between wearing our notary hat vs. wearing our NSA hat. As an NSA, we know that executing loan docs by an AIF needs to be approved in advance - and there may be further guidelines and/or restrictions under various state laws.
In a GNW situation, there's a big difference between what we need to focus on when we're notarizing the execution of a POA by a Principle vs. notarizing someone who is signing as the Agent or 'Attorney In Fact', (AIF) for someone else (the Principle). It's the former situation where we need to be most cautious in determining awareness, willingness, etc. But when it comes to the latter, I don't believe we should assume something inappropriate is going on just because someone has POA authority for someone else.
The vast majority of the time, it's a son or daughter signing for a parent. If it's been prepared by an attorney, there's even less likelihood of a problem. However, that doesn't mean we can't ask questions, like whether or not an attorney was involved; how long ago was the POA executed; are there other siblings; has the POA been recorded, etc. And if the AIF isn't a family member, that might be reason to ask a few more questions. While I believe we should always be careful and look for any signs of that something is 'off', I don't believe we should assume something nefarious is going on just because someone is using their POA authority to sign on someone else's behalf.
In some states, the notary may be required to see proof of that authority, but in others, we should consider it a valid notarial request (as long as it's clear that they're signing "...as AIF" vs. forging someone else's name. Ultimately, if a notary is not comfortable making these judgments, they should always feel free to decline.
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